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Evidence
Elon University School of Law
Friedland, Steven I.

 
·       Pre-trial & Trial Process
o   ARREST: Beginning of the Criminal Process
§ Pre-trial:
·         Detention
·         Pleading:
o   Information (equivalent to complaint in civil case)
o   Provides due process & notice (Constitutional Requirements)
o   Grand Jury issues indictment & decides if there is enough information to move forward
§ Only the prosecutor stays with the GJ
§ Used in the most severe or controversial cases
·         Joinder & Severance
o   Acts of transactions that are related may be charged & tried together
o   Accomplice liability
§ Motions:
·         Motion to Dismiss/Motion to Quash the Indictment (Δ)
·         Lack of Jurisdiction by Δ
o   Can be made at any time in criminal process
·         Interlocutory Appeal
o   When a motion is denies, granted this which takes place as case is ongoing
·         Incompetent to Proceed
o   Δ gets psychiatric evaluation
·         Suppression of Evidence
o   Evidence illegally obtains & restricted by 4th amendment
o   Statements outlaws by 5th amendment
·         Discovery
§ Trial
·         Voir Dire
o   Jurors are questions by π, defense & judges
o   Strikes
§ For cause
§ Preemptory Challenges
·         Subject to Constitutional Limitations (Equal Protection)
o   Race, gender, ethnicity, religion
·         Opening Statements
o   π 1st (lays out prima Facie case; not allowed to argue; request verdict)
o   Δ 2nd (make now or wait until the beginning of case; may offer no defense at all – burden is on the π to prove the elements of the crime)
·         Π Evidence (Case-in-Chief) – preponderance of the evidence & clear & convincing
·         Δ Evidence (Case-in-Chief) –Don’t have to put on evidence
·         Rebuttal Cases, if any
·         Instructions Conference (Jury instructions))
·         Closing Arguments (talk about upcoming instructions; argue witnesses; offer different stories
§ Post-Trial:
·         Motions offered, release issues
·       Evidence (RCOHPWW) Race cars often have pricey wild wheels
o   WHAT IS EVIDENCE?
§ Real (gun, earring), representative (photo, blueprint), or testimonial (witnesses) proof
§ Direct (proves fact) or circumstantial (relevant if an inference can be drawn)
§ What the trier of fact can consider
o   GOAL: “In Evidence” – Trier of fact gets to hear it at a minimum
§ Evidence is how the lawyer uses it
o   THE ROLE OF JUDGES & ATTORNEYS
§ FRE 101: Scope of the Rule
·         Govern proceedings in the court of the US
§ FRE 102: Purpose of the Rule
·         Secure fairness in administration, elimination of unjustifiable expense & delay, etc…
·         Uniformity, Fairness, Efficiency
§ FRE 103: Ruling on

each your own witness (may impeach own witness because a party does not hold out his witness as worthy of belief, since he rarely has a free choice in selecting them. Denial of the right leaves the party at the mercy of the witness and the adversary.
o   Intrinsic (CBC BATS)
§ Define: Comes from the witnesses mouth; dependent on witness answers (just because you are holding something any questioning based on that, still asking directly = intrinsic)
§ CBC BATS
·         C: Contradiction
o   Not in the rules.
o   There is one statement and you may use outside authority to contradict that statement on cross.
o    Ask witness if facts are different than testimony
o   Example: medical experts get this ALL the time.
·         B: Bias
o   Note in the rules.
o   Definition: Motive to misrepresent; lack of neutrality or interest in the income or corrupted or influenced in some way
§ Perception of bias counts (e.g. siblings)
o   Rule 403 (balancing test) – still applies
·         C: Convictions
o   Applies to:
§ (1) Felonies
·         Punishable by imprisonment